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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v F & M Kilpatrick Ltd [2009] NIIT 3172_09IT (06 October 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/3172_09IT.html
Cite as: [2009] NIIT 3172_9IT, [2009] NIIT 3172_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 3172/09
CLAIMANT: Samuel Ian Thompson
RESPONDENT: F & M Kilpatrick LTD
Certificate of Correction
1. The decision issued on 1st September 2009 contained the incorrect
wording at paragraph 4.7. The correct wording is in point 2
below.
2. At paragraph 4.7 replace ‘Francis Kilpatrick, the Managing Director
personally’ with ‘Stephen Kilpatrick, the Managing Director’s brother’.
Chairman: __________________________________________
Date: __________________________________________
THE INDUSTRIAL TRIBUNALS
CASE REF: 3172/09
CLAIMANT: Samuel Ian Thompson
RESPONDENT: F & M Kilpatrick Ltd
DECISION
The decision of the tribunal is that the respondent shall pay the claimant £23,322.22 in respect of statutory redundancy payment entitlement, unpaid wages, expenses, notice pay and holiday pay.
Constitution of Tribunal:
Chairman (sitting alone): Ms Bell
Appearances:
The claimant appeared in person
The respondent was not present and was not represented.
1. The Claim
1.1 The claimant complained in his claim that the respondent in breach of contract had not paid him outstanding wages, expenses, holiday pay, notice entitlement, interest and charges, nor his statutory redundancy payment.
1.2 The respondent has not entered a response to the proceedings.
2. Issues
The issues for the tribunal are whether:
(1) The claimant is entitled to a redundancy payment?
(2) There has been a breach of the claimant’s contract of employment or other contract connected with his employment by the respondent causing the claimant to suffer a loss?
3. Evidence
The claim, documentation provided by the claimant, supplementary documentation provided by the claimant and oral evidence of the claimant were considered.
4. Finding of Facts
4.1 The claimant, born on 3 May 1964, was employed on 6 June 2006 by the respondent as its Operations Manager.
The respondent was a new start company concerned with the design, development and intended future supply and installation of gas bottle vending machines.
The respondent was given a written contract of employment providing for him to receive a salary of £35,000 per annum.
4.2 Francis Kilpatrick, the respondent’s managing director approached the claimant in March 2008 and asked him if he was prepared to invest in the respondent company as it was running out of money. The claimant agreed to invest in the company in return for a 5 percent shareholding and his promotion to General Manager was agreed.
4.3 On 20 March 2008 the claimant was given a new contract of employment promoting him to General Manager from 7 June 2008 at an increased salary of £50,000 per annum, stated therein
“to become effective when the company begins to trade. This date will be no longer than September 2008.”
The claimant queried the assurance given in his new contract that his pay increase would at the latest take effect in September 2008 despite him having previously suggested to the Managing Director that he was prepared to wait for his increase until the company was trading and comfortably able to afford it, however he was assured by the Managing Director that there was no reason not to give him the confirmation provided in the contract and the claimant decided to accept the undertaking to increase his salary at the latest in September 2008, without any further query.
4.4 After presentation of a final working prototype to a major customer in April 2008, a proposed contract did not materialise and consequently the respondent experienced financial difficulties and struggled to get investments or loans. The respondent was as a result unable to pay the claimant’s wages and expenses on time from April 2008. Prior to this the claimant had provided a copy of his expenditure on behalf of the company to the respondent for reimbursement each month and had been repaid shortly thereafter.
4.5 The claimant did not receive pay due under his contract of employment from the respondent for April 2008 of £2,153.06, May 2008 of £2,153.06, June 2008 of £2,152.86, July of £2,153.06, August 2008 of £2,152.86, September 2008 of £2,916.66, October 2008 of £2,916.66, and November 2008 of £2,916.66, totalling £19,514.88.
4.6 In March 2008 the claimant paid £366.76 to Vodafone for company mobile phone charges, £98.70 to 2001 Electronic Component Ltd for a modem and £737.01 to Harrington Vending Machines Ltd in respect of production costs, parts and spares on behalf of the respondent, in April 2008 £103.50 in respect of subscription fees for membership of the Institute of Operations Management which the respondent had agreed to pay for him, in May 2008 £364.25 for art work by Bradbury Graphics for the respondent and in August 2008 £152.75 to Bradbury Graphics for further art work for the respondent and £131.56 towards software purchased from PC World Business required for the claimant’s computer for work purposes. The claimant sought repayment of these expenses from the respondent and other costs in the usual way but did not receive payment. The claimant received a payment of £2,500 on 25 April 2008 and £900 on 19 September 2008 from the respondent toward money outstanding to him.
4.7 From April 2008 onwards the claimant sought payment from the respondent of outstanding money. In email correspondence dated 2 September 2008 the claimant confirmed to the respondent that net wages outstanding to him as at 31 August 2008 for the 5 months April to August amounted to £10,607.15, no reference was made to wages being outstanding prior to April 2008. Between April and December 2008 the claimant received £800 from Maureen Kilpatrick, the Managing Director’s mother, £6,000 from Peter Kilpatrick, the Managing Director’s brother and £6,713.23 from Francis Kilpatrick, the Managing Director personally, in lieu of wages due to the claimant from the respondent company on the basis that the claimant would reimburse them when he received monies owed to him by the company.
4.8 The claimant ceased working for the respondent at the beginning of December 2008, his employment was formally terminated on 16 December 2008, on receipt of a letter dated 1 December 2008 confirming his dismissal by reason of redundancy. The respondent’s letter of 1 December 2008 acknowledged that the claimant was entitled to receive outstanding salary and payment in lieu of 10 days holiday entitlement.
4.9 The claimant received payslips from the respondent’s accountant after termination of his employment, but no payment in respect of monies acknowledged as being due to him. The claimant agreed with the payslips provided by the accountant for April to August 2008 inclusive, however he disagreed with the payslips provided for September, October and November 2008 because they were not at the increased rate of pay agreed to take effect from September 2008. The claimant sent an email on 23 December 2008 to the respondent requesting corrected paperwork.
5. The Law
5.1 Under Article 170 of The Employment Rights (Northern Ireland) Order 1996 an employer shall pay a redundancy payment to any employee of his, if the employee is dismissed by the employer by reason of redundancy. Circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set out in Article 174 of the 1996 Order and include if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished, or are expected to cease or diminish.
5.2 Article 197 of the 1996 Order sets out how the amount of the redundancy payment should be calculated.
5.3 Under Article 23 of the 1996 order, as amended at the time of the claimant’s dismissal, for the purpose of calculating a redundancy payment, the amount of the weeks pay shall not exceed £330.00.
5.4 Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with employment before an industrial tribunal if the claim arises or is outstanding on termination of his employment.
6. Application of Law to Facts Found
6.1 Based on the rebuttable presumption of redundancy for the purposes of any claim for a redundancy payment and the undisputed evidence before it, the tribunal is satisfied that the claimant was dismissed by reason of redundancy and is entitled to receive from the respondent a redundancy payment calculated as follows:-
2 x £330.00 x 1.5 = £990.00
(complete years (statutory maximum (age factor) continuous employment) weeks pay)
6.2 The tribunal considers based on the evidence before it that the respondent has breached the claimant’s contract of employment in failing to pay him pay as set out in the wage slips provided to him for April to August 2008 inclusive, and the contractually agreed increased monthly pay of £2,916.66 due to him for September, October and November 2008, amounting to £19,514.88, ten days holiday entitlement agreed in correspondence by the respondent, amounting to £1,346.15 and 4 weeks contractual notice pay on termination of the claimant’s employment by the respondent amounting to £2,916.66.
6.3 The tribunal is not satisfied on the evidence before it that all the costs and expenses sought by the claimant were incurred and are recoverable under his contract of employment or another contract connected with his employment, it is however based on the claimant’s undisputed oral evidence and vouching documentation provided satisfied on a balance of probabilities that the claimant incurred the following expenses in connection with his employment and had an agreement with the respondent that these sums would be repaid to him and hence that the claimant should recover the £366.76 paid to Vodafone, £98.70 to 2001 Electric Components Ltd, £737.01 to Harrington Vending Machines Ltd, £103.50 to the Institute of Operations Management, £364.25 and £152.75 paid to Bradbury Graphics, and £131.56 paid to PC World Business.
7. Conclusion
The respondent shall pay the claimant a statutory redundancy payment and damages for breach of contract as follows:-
Redundancy Payment £990.00
Wages £19, 514.88
Holiday Entitlement £1,346.15
Notice Pay £2,916.66
Expenses £1,954.53
£26,722.22
Less payments made by the respondent to the claimant on:
25 April 2008 - £2,500.00
19 September 2008 - £900.00
Total £23,322.22
8. Interest
This decision is a relevant decision under the Industrial Tribunal (Interest Order) (NI) 1990.
Chairman:
Date and place of hearing: 8 June 2009, Belfast
Date decision recorded in register and issued to parties: